Filar, Valerie v. Chicago School Refor ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1275
V ALERIE T. F ILAR,
Plaintiff-Appellant,
v.
B OARD OF E DUCATION OF THE C ITY OF C HICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 4679—Charles R. Norgle, Judge.
____________
A RGUED JANUARY 25, 2008—D ECIDED M AY 22, 2008
____________
Before F LAUM, R OVNER, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. Valerie T. Filar formerly taught
as an untenured, full-time teacher in the Polish bilingual
education department at the Edwin G. Foreman High
School in Chicago. In 1999, the Board of Education of
the City of Chicago, then known as the Chicago School
Reform Board, approved a decision by Foreman’s
principal to change Filar’s status from a full-time teacher
at Foreman to a substitute teacher who would fill va-
cancies in other Chicago public schools as they arose. Filar,
who was 69 at the time, objected to the decision for at
2 No. 07-1275
least two reasons. In the first place, she suspected that
Foreman’s principal had deliberately retained younger
teachers in the bilingual program at her expense. In
addition, Filar’s osteoarthritis and dependence on
public transportation made getting to the city’s various
schools difficult, and the Board denied her request that
she only be assigned to schools that were easily accessed
from bus stops. This lawsuit followed, alleging age dis-
crimination and that the Board failed to reasonably accom-
modate Filar’s disability. The district court granted the
Board’s motions for summary judgment on both claims,
and this appeal followed. For the reasons set out below,
we reverse the district court’s grant of summary judg-
ment with respect to the age discrimination claim but
affirm with respect to Filar’s disability claim.
I. Background
Filar’s claims stem in large measure from allegations that
the principal of Foreman High School made questionable
personnel decisions that resulted in her ouster from
Foreman. Understanding these allegations requires some
background on Illinois’s bilingual education program
and the (elaborate) mechanics of a principal’s relation-
ship with the teachers in her school. Illinois law requires
the State’s school districts to establish programs of transi-
tional bilingual education for students of limited English-
speaking ability. ILCS §§ 5/14C-1, C-3. To staff these
programs, school districts offer a transitional bilingual
teaching certificate to qualified individuals proficient in
both English and a foreign language, known as a Type 29
certificate. ILCS § 5/14C-8. The Type 29 certificate is a
bridge certification; teachers can teach students with
limited English skills while working for a standard teach-
No. 07-1275 3
ing certificate, which for secondary schools like Foreman
is called a Type 09 certificate. Id.; see generally ILL. A DMIN.
C ODE tit. 23, § 25.90 (2008) (containing current qualifica-
tions). Once a teacher has attained the standard teaching
certificate, she has to obtain both a bilingual “approval,”
which attests to her ability to provide a bilingual education,
and “endorsements,” which are descriptors like “Mathe-
matics” or “Reading” that indicate the subject matters
she is competent to teach. See, e.g., ILL. A DMIN. C ODE tit. 23,
§ 25. app. E (listing representative endorsements as of
July 1, 2004).
Even with the proper certifications, a would-be teacher
in Illinois must still get hired, and not all teaching posi-
tions are the same. Public schools in Chicago employ
several different categories of teacher, each with its own
moniker and level of job stability. The most secure are
tenured teachers, whom a principal can only remove for
“cause.” 105 ILCS 5/34-84. Below tenured teachers are
tenure-track or “appointed” teachers who work full time
with a particular class at a specific school, and, as their
name suggests, can eventually obtain substantial job
security. There are also at least two kinds of non-tenure-
track teachers: “cadre” substitute teachers move from
school to school to cover temporary vacancies on a daily
basis; and full-time basis or “assigned” substitutes work
at one school full time, just like tenure-track teachers
only with less seniority and without the potential job
security.
Principals have wide discretion in moving a school’s
teachers from a full-time basis position onto the tenure
track. But how many full-time teachers a school can
employ in a given year derives in large measure from the
principal’s available budget for the school year. Among
4 No. 07-1275
other things, the annual budget from the Chicago Board of
Education and the Budget Office lists how many positions
the Board will fund in a given school year for each
school program. In addition to Board-funded position, the
principal may also have a certain number of teaching
positions at his school funded by the State of Illinois. When
the school does not have enough funded positions for all
its teachers, the principal may have to “displace” unfunded
teachers; that is, recategorize either tenure-track or full-
time substitute teachers as “cadre” substitutes who must
then fill vacancies in other city schools as they arise.
When that happens, the principal displaces teachers in
reverse order of seniority. A less senior full-time basis
substitute in a given subject or program will go before a
more senior one; and a tenure-track teacher will not go
until the principal has displaced all of the full-time basis
substitutes. Although the principal possesses substantial
authority to make personnel decisions, it’s not absolute.
The principal must first send a personnel request to the
Board’s Human Resources Department. There, someone
determines whether the decision complies with the Chi-
cago Teachers Union’s collective bargaining agreement
and whether the teacher has the requisite certifications.
Then, based on these criteria, Human Resources either
approves or denies the decision.
This case arises from the events immediately before and
after Filar’s displacement in 1999. Filar was born on
January 11, 1930 in Poland. In 1991, she received her Type
29 certification and, the next year, Foreman’s principal,
Dr. John Garvey, hired her to teach Computers in the
school’s Polish bilingual program as a full-time basis
substitute. Not long after he hired Filar in 1992, Dr. Garvey
displaced her, although after Filar filed a grievance she
No. 07-1275 5
was soon reinstated. While Filar was fighting her dis-
placement in 1992 and 1993, Dr. Garvey hired two more
teachers for the school’s Polish bilingual program—Piotr
Monaco (born in 1957) and Kornelia Rydberg (born in
1960)—both of whom had Type 29 certifications. In Sep-
tember 1997, Filar received her Type 09 standard teaching
certification with endorsements in Accounting and Com-
puters, and, a month later, she obtained her bilingual
approval.
The parties dispute exactly when and how Dr. Garvey
made the determination, but at some point in 1999 it
became clear to him that the demand had fallen some-
what for bilingual Polish education due to a decrease in
enrollment. In the school year beginning 1998, Foreman
had five Board-funded positions for the Polish bilingual
program; for the 1999 school year, it would lose one. What
followed was a flurry of personnel decisions that would
change the program and the employment status of the
teachers. Two such decisions affected the other full-time
substitute teachers then in the program. On July 23, 1999,
Dr. Garvey sent a request to the Board that Monaco be
appointed to a tenure-track position. Monaco had re-
ceived his Type 09 certification in March 1999, but he had
yet to receive his bilingual approval. And on September 3,
1999, two days after the school year began, Dr. Garvey
sent a similar request that Rydberg be appointed to a
tenure-track position. Rydberg had obtained her Type 09
certification on August 18, 1999, but also had yet to re-
ceive her bilingual approval.
On September 12, 1999, Dr. Garvey then slotted a new
teacher into the Polish bilingual program when he re-
quested that the Board move a tenure-track teacher,
Helena Danielska (born in 1939), into the program.
6 No. 07-1275
Danielska had her Type 09 certification with an endorse-
ment in mathematics and a Type 29 certificate with a
Polish-bilingual endorsement. In moving Danielska into
the program, Dr. Garvey moved Filar from a state-
funded position to a Board-funded position and then put
Danielska into Filar’s old state-funded position. The Board
approved the change on September 14. Finally, on Septem-
ber 15, Dr. Garvey hired Elaine Guzman as a tenure-track
teacher to teach ESL Computers at Foreman. Guzman
had the certifications needed to teach at elementary
school but needed special permission to teach because
she did not yet have the Type 09 certification to teach
high school students.
As things stood on September 17, 1999, Filar was the
only full-time basis substitute in the Polish bilingual
program and she had moved from a state-funded position
to a Board-funded position. That same day, Dr. Garvey
informed Filar that he was displacing her to the cadre.
Following her displacement, Filar reported to the Office
of Culture and Language, the department in Chicago
Public Schools that is responsible for administering bilin-
gual programs. Filar claims that someone at OCL told
her to return to Foreman because her position was not
being closed. Filar then returned to Foreman and on
September 27, 1999 she received a second letter from
Dr. Garvey stating that she was being displaced to the
cadre. After she received this second letter, Filar reported
to the Board again and she was told to return to Foreman
as a cadre substitute. But when she arrived, Dr. Garvey
refused to accept her as a cadre substitute at Foreman,
explaining later in his deposition that he was con-
cerned over the bad blood from the displacement and
the potential disruptive effect it might have on the school.
No. 07-1275 7
Filar then filed a grievance challenging her displace-
ment. In December 1999, Dr. Garvey submitted a letter
regarding his decision to displace Filar. He stated that he
had displaced her because “she was the least senior
member of the faculty in the Polish Bilingual Program” and
the “decrease in enrollment in the Polish program necessi-
tated a decrease in the staff. Ms. Filar was the only [full-
time basis substitute] left in the Polish Bilingual program
at this time and was displaced for that reason.”
Filar’s new role as a cadre substitute was complicated
by the fact that she suffered from osteoarthritis. Filar’s
arthritic hip made walking long distances difficult, and she
could not drive herself to work. In November 1999, she
requested an accommodation for her disability from
Chicago Public Schools. She wanted to be staffed at “one
place of work with minimum walking distance from
public transportation.” The Board denied her request,
stating that cadre substitutes “must report to whichever
school the Substitute Center assigns [them] to on the day
that [they] receive the assignment” and that her re-
quest was “not a matter for work-place reasonable accom-
modation.”
This lawsuit followed in July 2004, alleging age discrim-
ination under the Age Discrimination in Employment Act
based on her September 1999 displacement and that the
Board violated the Americans with Disabilities Act by
failing to accommodate her disability. After discovery, the
Board filed its motion for summary judgment as to
both claims, which the district court granted. As to
Filar’s discrimination claim, the court reasoned that she
had failed to show a similarly situated employee and thus
could not prove her prima facie case. Even if she could, the
court reasoned, Filar had presented insufficient evidence
8 No. 07-1275
of pretext for the case to proceed to trial. As for Filar’s
ADA claim, the court reasoned that the Board had no
obligation to staff her at schools near public transporta-
tion. Because proximity to public transportation did not
affect her ability to actually teach in a classroom, the
accommodation she had requested was not related to the
“essential functions of the employment position,” scotching
her ADA claim. This appeal followed.
II. Discussion
Filar raises two general issues on appeal, tracking her
two causes of action. First, she claims that the district court
erred in granting the Board’s motion for summary judg-
ment as to her age discrimination claim. Second, she argues
that the district court had an unduly cabined view of the
“essential functions” of the cadre substitute teacher and
thus erroneously granted the Board’s summary judgment
motion as to her ADA claim. We review both claims
de novo, drawing all reasonable inferences in Filar’s
favor. EEOC v. Bd. of Regents of University of Wisconsin Sys.,
288 F.3d 296, 301 (7th Cir. 2002). The following sections
discuss each in turn.
A. ADEA Claim
As she did before the district court, on appeal Filar
challenges her displacement from Foreman in September
1999, alleging that age discrimination, and not some
legitimate personnel concern, was the engine behind
Dr. Garvey’s decision. Filar chose to prove her case indi-
rectly through an adapted version of the burden-shifting
framework first announced in McDonnell Douglas Corp. v.
No. 07-1275 9
Green, 411 U.S. 792 (1973).1 As applied to employment
actions like displacement, if a plaintiff establishes her
prima facie case, the burden shifts to the employer to
articulate a legitimate non-discriminatory reason for
the adverse employment action; after which the burden
shifts back to the plaintiff to present some evidence that
this reason is a pretext for discrimination. Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). This
procedural device sharpens the factual issues for a
possible trial; the employer must provide some reason
for its action that a plaintiff can attack, rather than
stand mute except to deny the sufficiency of the plain-
tiff’s evidence. Filar raises several issues related to this
framework, discussed in turn in the sections that follow.
1. Appropriate Prima Facie Case
Filar argues first that the court used the wrong set of
factors to evaluate her prima facie case. The district court
applied the familiar four-factor prima facie case for ad-
1
Filar’s brief justifies this decision as resulting from a lack of
“direct evidence of discrimination.” But despite the nomencla-
ture,“ ’direct’ proof of discrimination is not limited to
near-admissions by the employer that its decisions were based
on a proscribed criterion (e.g., ‘You’re too old to work here.’),
but also includes circumstantial evidence which suggests
discrimination through a longer chain of inferences.” Atanus
v. Perry, ___ F.3d ___, 2008 WL 696908, *5 (7th Cir. 2008). One
can question whether the differences that remain between the
“direct” and “indirect” methods are more a result of history
than logic. In any event, Filar’s claimed lack of “direct” evidence
is not necessarily a sufficient reason to scuttle a “direct” method
claim.
10 No. 07-1275
verse employment actions requiring proof that (1) Filar
was over age forty; (2) her job performance met Dr.
Garvey’s expectations; (3) she suffered an adverse em-
ployment action; and (4) the employer treated “similarly
situated” employees at least ten years younger more
favorably. See Burks v. Wisconsin Dept. of Transp., 464 F.3d
744, 750-51 (7th Cir. 2006). On appeal, Filar instead charac-
terizes her displacement as being part of a mini-reduction
in force. When an employee is dismissed as part of a mini-
RIF, the dismissed worker’s duties are spread out among
the remaining employees. Merillat v. Metal Spinners, Inc.,
470 F.3d 685, 690 (7th Cir. 2006). The retention of younger
employees who take on the dismissed employee’s re-
sponsibilities “is nothing more than a demonstration of
more favorable treatment, particularly tailored to the
factual circumstances of a mini-RIF case.” Id. at 690 n.1. As
a result, the prima facie case in this context swaps the
fourth requirement in the basic framework—that a simi-
larly situated younger employee was treated more
favorably—with another—that her duties were ab-
sorbed by younger workers who were retained following
the mini-RIF. Id. at 690-691. Thus, in Filar’s estimation,
the district court applied the wrong standard and thus
erred in requiring proof that “similarly situated” younger
teachers were treated more favorably.
The district court cannot be faulted for failing to em-
ploy the mini-RIF standard because a mini-RIF claim
was not fairly before it. Filar’s complaint did not include
allegations consistent with a mini-RIF claim. And in her
response to the defendant’s motion for summary judg-
ment, Filar argued that a reduction in force, the regular-
sized variety, precipitated her displacement. As this Court
has explained, the relevant factual inquiry in a reduction-
No. 07-1275 11
in-force case is not the same as a mini-RIF case. In the
former, a plaintiff’s position was eliminated entirely and
will not be refilled whereas “[t]he point of a mini-RIF
unlike a true RIF, is that the job really was not eliminated
at all; because the fired employee’s duties were absorbed
by others, they were effectively ‘replaced,’ not eliminated.”
Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000).
The practical effect of this formal difference, one that is
fatal to Filar’s claims, is that the type of proof expected of
a mini-RIF claim is different than that stemming from a
formal RIF. For her mini-RIF claim, Filar had to show
that her position was “absorbed” by the remaining
younger co-workers, not just eliminated. Michas v. Health
Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir.
2000). But Filar did not purport to make this showing in
either her memorandum in opposition to the Board’s
motion for summary judgment or her Local Rule 56.1
statement of facts.2 Instead, the thrust of her RIF argument
consisted of a statement that “younger workers . . . were
favorably retained in the RIF while [she] was displaced.”
An apt statement of her evidentiary burden in a RIF
2
Filar’s presentation of the evidence in her Local Rule 56.1
statement of the facts was also inconsistent with a mini-RIF
claim. On appeal, she only points to two facts from her
statement—that Rydberg and Monaco taught computers in
the 1999 school year—to support her mini-RIF claim. That
these two were teaching computers, a subject that Filar had
taught prior to displacement, does not mean that they “ab-
sorbed” her duties after her departure. To show that, some-
thing more would be needed—for example, a showing that
this was an increase in their duties. Michas, 209 F.3d at 693.
In any event, the mini-RIF claim was simply not before the
district court, as a legal matter or as represented by the facts.
12 No. 07-1275
claim, but not a mini-RIF one. In short, the district court
did not err in its treatment of Filar’s claim because it was
never asked to treat such a claim. See Weigel v. Target
Stores, 122 F.3d 461, 464 (7th Cir. 1997). Accordingly, the
district court applied the right prima facie case.
2. “Similarly Situated” Younger Employees
Even so, did it apply the standard correctly? The parties
agree that (1) Filar was over forty in September 1999;
(2) she was meeting the school’s legitimate employment
expectations; and (3) she suffered an adverse employment
action—three of the four elements of her prima facie
case. But the parties dispute whether Filar presented a
“similarly situated” younger employee who was treated
more favorably. The district court rejected each of Filar’s
proposed comparators because, prior to Filar’s displace-
ment, each was a tenure-track teacher, not a full-time
substitute like Filar. Because tenure-track teachers do not
compete with full-time substitutes in terms of seniority,
the court reasoned, Filar could not point to them as
“similarly situated” younger employees and thus could
not establish her prima facie case.
We disagree. Whether two employees are “similarly
situated” is a common sense inquiry that depends on the
employment context. Radue, 219 F.3d at 618. The purpose
of the prima facie case is to ensure that there is enough
evidence to raise the specter of discrimination, justifying
judgment for the plaintiff if the employer does not provide
a legitimate business reason for its action. See Collier v.
Budd Co., 66 F.3d 886, 890 (7th Cir. 1995). All things
being equal, if an employer takes an action against one
employee in a protected class but not another outside that
No. 07-1275 13
class, one can infer discrimination. See Humphries v. CBOCS
West, Inc., 474 F.3d 387, 405 (7th Cir. 2007). The “similarly
situated” prong establishes whether all things are in fact
equal. Id. To make this showing, a plaintiff need not
present a doppelganger who differs only by having
remained in the employer’s good graces. But the compara-
tor must still be similar enough “to eliminate confounding
variables, such as differing roles, performance histories, or
decision-making personnel, [so as to] isolate the critical
independent variable: complaints about discrimination.”
Id.
Two of the comparators offered by Filar—Rydberg, 42,
and Monaco, 39—were “similarly situated” younger em-
ployees for purposes of her prima facie case. All three had
taught at Foreman for roughly the same period of time.
Dr. Garvey hired Filar in 1992 and he hired both Rydberg
and Monaco soon thereafter while Filar was grieving her
original displacement. All three were properly certified,
and by all measures their duties were the same. To the
extent that their certifications differed at the time that
Dr. Garvey displaced Filar, it was because Filar had
received her Type 09 teaching certificate in 1997 whereas
Rydberg and Monaco had only attained it in 1999. In
addition, Filar’s Type 09 certificate had the bilingual
approval whereas neither Rydberg’s nor Monaco’s did.
Dr. Garvey supervised all three teachers, and, as far as
the record shows, none had any disciplinary or perfor-
mance issues at the time of Filar’s displacement.
Dr. Garvey considered Filar to be a good teacher; he
had consistently rated Filar’s performance evaluations
as “Superior” or “Excellent” from 1994 through 1999. The
record does not indicate what scores Rydberg and Monaco
received, but given Filar’s high marks we can assume
14 No. 07-1275
for present purposes they were similar in this regard
as well.
Despite these similarities, the district court considered
their differences in seniority to be fatal to any showing of
similarity. As the court correctly noted, full-time substi-
tutes were less senior to tenure-track teachers for pur-
poses of displacement. And, unlike Filar, both compara-
tors were tenure-track teachers. In some circumstances,
differences in seniority will preclude a showing that two
employees are “similarly situated” or of age discrimination
more generally. To the extent that seniority is a simple
proxy for something like the length of employment and is
something that an employer must credit when making
employment decisions, differences in seniority will tend to
make two employees dissimilar for purposes of the plain-
tiff’s prima facie case. See, e.g., Doe v. First Nat. Bank of
Chicago, 865 F.2d 864, 877 (7th Cir. 1989) (crediting com-
parator’s “long tenure” in denying that she was “similarly
situated”). This is because, in making the employment
decision, the employer had to credit a factor over which it
had no control, and thus a finding of intentional age
discrimination would be implausible given that the em-
ployer’s “intent”—discriminatory or otherwise—was
largely irrelevant to the decision. Had this been the case
at Foreman, the district court would have been right
to conclude that Filar was not “similarly situated” to
tenure-track teachers.
But where seniority is unmoored from everything but
the discretion of the employer, the simple fact that the
comparator is more senior to the plaintiff may not be
dispositive, even where the employer must credit seniority
in employment decisions. An employer could exercise
its discretion in conferring seniority in a discriminatory
fashion, making an immediately subsequent employment
No. 07-1275 15
action based on seniority discriminatory as well. In a
related context, we have held that an “employer cannot
frustrate the statute merely by assigning every employee
a different job title.” Bellaver v. Quanex Corp., 200 F.3d
485, 494 (7th Cir. 2000). Similarly, an employer cannot
defeat a claim of discrimination by giving younger em-
ployees greater seniority rights immediately before dis-
placing an older, but less senior, employee.
This is not to say that Dr. Garvey and the Board have
done so in this case. But the district court concluded
that the differences in seniority alone were sufficient to
defeat a finding that Filar’s comparators were “similarly
situated.” Given the manipulability of seniority at Fore-
man, this was error. Although seniority had some bite to
it when a principal had to displace teachers—by rule,
less senior teachers went before more senior—the con-
ferral of seniority itself consisted of nothing more than a
mine-run, discretionary personnel decision made by the
principal. But see Adelman-Reyes v. Saint Xavier University,
500 F.3d 662, 667 (7th Cir. 2007) (discussing reluctance
of court to get involved in tenure decisions where accom-
panied by “multiple layers of independent review”). In
addition, as seen above, a teacher that a principal moved
to a tenure-track position did not thereby obtain greater
duties. Nor did the principal necessarily make the decision
solely on the basis of some difference in the teachers’
respective qualifications—something that might other-
wise preclude a showing of “similarly situated.” Whether
on the tenure track or a full-time substitute, all three
were teachers with, as far as the evidence shows, nearly
identical responsibilities and qualifications. See Bellaver, 200
F.3d at 494 (stating that comparators and plaintiff “had
the ability to perform each other’s tasks, even though
16 No. 07-1275
they had different titles and specific responsibilities”). In
short, although principals are free to make seniority
decisions as they see fit—just as any employer can move
an employee from one job to the next—the differences
in seniority here were not inconsistent with intentional
discrimination, as the district court implied. As a result,
in light of the other factors listed above, Filar has pointed
to two “similarly situated” younger employees to estab-
lish her prima facie case.
3. The Board’s Legitimate Non-Discriminatory
Reason and Filar’s Evidence of Pretext
Filar having established her prima facie case, the Board
must articulate a legitimate business reason for dis-
placing her and not the younger teachers. Before the
district court and here on appeal, the Board has pointed
to the decline in enrollment in the Polish bilingual pro-
gram combined with the fact that Filar was the least
senior teacher in the program. The issue now is whether
this reason was pretextual. Showing pretext requires
“[p]roof that the defendant’s explanation is unworthy of
credence.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147 (2000); see also Sublett v. John Wiley & Sons,
Inc., 463 F.3d 731, 737 (7th Cir. 2006) (“Pretext is a ‘lie,
specifically a phony reason for some action.’ ”). The
plaintiff’s ultimate burden is to show that intentional age
discrimination motivated the employer’s action, but
marshaling such evidence does not always require a
smoking gun or an eyewitness to the employer’s dis-
criminatory designs; “the trier of fact can reasonably infer
from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.” Reeves,
530 U.S. at 147. Thus, in certain circumstances, “a plain-
No. 07-1275 17
tiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” Id.
We conclude that Filar has presented enough evidence
to undermine the Board’s claim, specifically the evidence
of the timing and effect of the series of personnel decisions
Dr. Garvey made over the summer and fall of 1999. A
jury could conclude that the only reason that Filar was the
least senior full-time substitute at the time of the displace-
ment decision was because Dr. Garvey had put her, and
not the younger teachers, in that position. First, in
spring 1999, Dr. Garvey knew that the demand for Polish
bilingual education would decrease. An affidavit and
summary chart from Rosa Vazquez, the Executive Ad-
ministrator in the Department of Language of Culture,
indicated that Foreman would lose one Board-funded
position between 1998 and 1999, though the date of this
report was the fall of 1999. In her deposition, she stated
that school principals received a similar report estimating
prospective demand for school programs in the spring
of every school year. In addition, this information would
be available “live” to school principals throughout the
year. Stephen Heller, a Human Resources specialist,
similarly described the staffing process as being ongoing
throughout the school year, including through the use of
projections. Thus, the evidence, viewed in the light most
favorable to Filar, shows that in spring 1999 Dr. Garvey
knew he would be losing one Board-funded position.3
3
Filar makes at times contradictory claims regarding when
Dr. Garvey actually knew that someone would need to be
(continued...)
18 No. 07-1275
Second, in spring and summer 1999, Dr. Garvey made
personnel decisions to move Filar from the most to the
least senior full-time substitute position. At the end of
the 1998 school year, Filar was still a full-time basis sub-
stitute, having a slightly longer tenure than either Ryd-
berg or Monaco. In March 1999, Rydberg received his Type
09 certificate, though not the bilingual approvals, and on
July 23, 1999 Dr. Garvey appointed Rydberg to a tenure-
track position. On August 18, 1999, Monaco received her
Type 09 certificate, similarly without her bilingual approv-
als, and on September 3, 1999, Dr. Garvey appointed her
to a tenure-track position. In justifying his decisions to
move Rydberg and Monaco, but not Filar, to tenure-track
positions, Dr. Garvey said that it was based on his “judg-
ment” that they were “more suited to the position.” But
in later explaining how he exercised this “judgment,”
Dr. Garvey could not recall any of the specifics. Third, on
September 12, 1999, Dr. Garvey moved Filar out of a state-
funded position—which would remain funded—into a
Board-funded position—which would not. He then dis-
placed Filar.
3
(...continued)
displaced. On the one hand, she says that Dr. Garvey “embarked
on a plan to displace Filar that dated back to the early sum-
mer of 1999.” And that he wanted “to isolate Filar as the only
[full-time substitute] in the Polish bilingual program.” But in the
next breath, she claims that staffing needs could not be made
until the fall of 1999, which is hard to reconcile with her argu-
ment that Dr. Garvey bent procedural personnel rules to his
designs from the “early summer of 1999.” Because the record
does not support her latter claim, we construe her more gen-
eral claim consistently with what the record does support.
No. 07-1275 19
Up to this point, the evidence is consistent with both a
desire to oust Filar—for whatever reason—and an intent
to discriminate against her because of her age. Nonethe-
less, the differential treatment afforded Filar and her
younger colleagues, along with the timing of Dr. Garvey’s
decisions, inch Filar’s case forward and satisfy us that
an issue of fact exists as to discrimination. First, Dr. Garvey
failed to appoint Filar once she was properly certified
but almost immediately appointed younger teachers to
more senior positions. See Gordon v. United Airlines, Inc.,
246 F.3d 878, 892 (7th Cir. 2001) (“A showing that similarly
situated employees belonging to a different racial group
received more favorable treatment can also serve as
evidence that the employer’s proffered legitimate, nondis-
criminatory reason for the adverse job action was a pre-
text for racial discrimination.”); see also Fischer v. Avanade,
Inc., 519 F.3d 393, 405-06 (7th Cir. 2008). Filar had received
her Type 09 certification in 1997. Despite the fact that it
was fairly common for full-time substitutes to become
tenure-track teachers after receiving this certification,
Filar did not move once she received her Type 09 certi-
fication. But when Rydberg, 42, and Monaco, 39, received
their certifications in spring and summer 1999, Dr. Garvey
almost immediately made them tenure-track teachers.
Filar maintained “Superior” and “Excellent” in her re-
views, and in his deposition Dr. Garvey could not give any
reason for failing to move Filar to the tenure track except
that “he felt these [other] teachers suited [tenure-track
positions] better.” Because the only salient difference
between Filar and the younger teachers was age, a jury
could conclude that age motivated Dr. Garvey’s decisions.
In addition, the timing of Dr. Garvey’s appointment of
Monaco and Rydberg was questionable. Both Rydberg and
20 No. 07-1275
Monaco went from full-time substitutes to protected
tenure-track teachers immediately before Dr. Garvey
displaced the least senior full-time substitute. Without
first making these two personnel moves, Dr. Garvey
would have needed to displace a younger teacher, and not
Filar. When viewed with Filar’s prima facie case and the
other evidence, this evidence of Dr. Garvey’s seemingly
strategic behavior would be sufficient to support a finding
of discrimination.4
4
This case also implicates a line of reasoning in our case law
that deserves mention. This Court has held that an “inference of
nondiscrimination” in age discrimination cases arises when
the plaintiff is already over 40 when hired and the same person
does the hiring and the firing. See, e.g., Ritter v. Hill ‘N Dale Farm,
Inc., 231 F.3d 1039, 1045 (7th Cir. 2000); Chiaramonte v. Fashion
Bed Group, Inc., 129 F.3d 391, 399 (7th Cir. 1997). This inference
has the most bite where “a relatively short time span” separates
the two. See Ritter, 231 F.3d at 1044 (two years), Chiaramonte, 129
F.3d at 399 (termination followed two years after retention of
employee in merger); Rand v. CF Industries, Inc., 42 F.3d 1139,
1147 (7th Cir. 1994) (two years). This is because it is unlikely that
a decisionmaker developed an “aversion to older people” in the
“relatively short time span” between hiring and firing.
Chiaramonte, 129 F.3d at 399. Here, Filar was well within the
protected class, 62 years old, when hired by Dr. Garvey, who
ultimately displaced her. Nonetheless, two considerations
convince us that this inference of nondiscrimination is not
controlling in this case. First, Filar’s hiring and displace-
ment were seven years apart, a period sufficient to dull the
inference that Dr. Garvey had not discriminated. Aside from
flagrant ageism—or an “aversion to older people”—the ADEA
aims to curb actions based on an employer’s unfair assumptions
about an older worker’s productivity. See General Dynamics
(continued...)
No. 07-1275 21
4
(...continued)
Land Systems, Inc. v. Cline, 540 U.S. 581, 586-87 (2004); 29 U.S.C.
§ 621(a)(2) (2006). As workers age, their marginal productivity
may fall and the costs of retaining them may rise, whether
through higher benefits costs or the higher salaries they’ve
earned. Cline, 540 U.S. at 586-87. As a result, employers might
think that younger workers can do the same work as older
workers at a lower price, whether measured in time or
money. Giving effect to these assumptions by swapping the
older with the younger worker would be an act of age dis-
crimination. Hazen Paper Company v. Biggins, 507 U.S. 604, 610
(1993) (“It is the very essence of age discrimination for an older
employee to be fired because the employer believes that
productivity and competence decline with old age.”). For this
reason, the fact that a worker was within the protected class
when hired might not be as telling in some cases: An employer
may assume an over-forty employee is productive when hired
but not years later. It may be reasonable to assume that
Dr. Garvey did not have an “aversion to older people” because
he hired Filar when she was 62. But it’s just as reasonable to
assume that Dr. Garvey viewed Filar as productive at 62 but
not at 69. Second, placing too strong a reliance on an inference
of nondiscrimination may go too far at the summary judg-
ment stage. In Filar’s case, this inference would be in favor of
the party moving for summary judgment. But the Supreme
Court and this Court have recognized that summary judg-
ment in discrimination cases should not be treated differently
than other kinds of cases. See Reeves, 530 U.S. at 148 (“[T]rial
courts should not ‘treat discrimination differently from other
ultimate questions of fact.’ ”) (quoting St. Mary Honors Center v.
Hicks, 509 U.S. 502, 524 (1993)); Adams, 231 F.3d at 428. Under
Rule 56, “the drawing of legitimate inferences from the facts are
jury functions,” and the court “must disregard all evidence
favorable to the moving party that the jury is not required to
(continued...)
22 No. 07-1275
The ultimate verdict in this case is by no means a fore-
gone conclusion. A jury could conclude that Dr. Garvey
just wanted to displace Filar because that was the best
decision for the school. Or the jury could surmise that
Dr. Garvey meant to ditch an older worker by giving
younger teachers seniority immediately prior to making a
seniority-based personnel decision. Because the evidence
slightly preponderates towards the latter and because of
the Supreme Court’s “cautionary note not to grant sum-
mary judgment too readily when facts are susceptible to
two interpretations,” Adams v. Ameritech Svces., Inc., 231
F.3d 414, 428 (7th Cir. 2000); see also Gordon, 246 F.3d at
893, granting the Board summary judgment on this claim
was unwarranted, and we therefore reverse.
B. ADA Claim
Filar also appeals the district court’s order granting the
Board’s motion for summary judgment as to her failure to
accommodate claim under the Americans with Disabilities
Act. The ADA prohibits “discriminat[ion] against a quali-
fied individual with a disability because of the disability of
such individual in regard to . . . terms, conditions, and
other privileges of employment.” 42 U.S.C. § 12112(a).
Discriminating against a “qualified individual with a
4
(...continued)
believe.” Reeves, 530 U.S. at 150-51 (so describing the approach
under Rule 50 where “the inquiry . . . is the same”). In light of
the above, we do not believe that a jury is required to believe
that Dr. Garvey did not discriminate against Filar when she
was 69 just because he hired her when she was 62. Thus, the
inference of nondiscrimination does not control in this case.
No. 07-1275 23
disability” means, as is relevant to Filar’s claim, not
making a “reasonable accommodation” where doing so
would allow a disabled employee to “perform the essen-
tial functions of the employment position” without impos-
ing an “undue hardship” on the employer. See 42 U.S.C.
§§ 12112(b)(5)(A) (reasonable accommodation and undue
hardship); 12111(8) (definition of “qualified individual
with a disability”). In other words, if the employer can
make reasonable changes to features of the job or the
work environment so that a disabled person can work
satisfactorily, the employer has to make those changes.
As discussed, Filar has an arthritic hip that makes
walking long distances difficult. After Dr. Garvey dis-
placed Filar from Foreman to the roving cadre of substi-
tutes, she requested that the Board staff her at “one place
of work with minimum walking distance from public
transportation,” listing Foreman High School and three
other acceptable schools. Later, the Board denied her
request for an accommodation. In a letter from the ADA
Administrator in the Human Resources department, the
Board stated that displaced cadre teachers “must report
to whichever school the Substitute Center assigns [them]
to on the day that [they] receive the assignment.” How the
cadre teacher did this was “not a matter for work-place
reasonable accommodation.” The Board also stated that,
“as a result of the School Reform Act, Central Office cannot
unilaterally assign an employee to a school as an accom-
modation without the acceptance and approval of the
principal of the receiving school.”
Filar argued below that the Board should have granted
her request, but the district court disagreed. In dismissing
Filar’s disability claim, the court held that Filar was not a
“qualified individual with a disability” because she had
24 No. 07-1275
not “allege[d] that this hip condition substantially prohibits
her from conducting her job as a teacher.” And her
“proximity to public transportation does not affect the
way in which she teaches Polish in her capacity as a
substitute teacher.”
Now on appeal, Filar claims this was error. We affirm
the district court’s dismissal of this claim, though for
different reasons. The fact that Filar’s hip condition did
not affect her ability to teach, which the district court
credited, does not end the matter; she can still be a “quali-
fied individual with a disability.” The ADA defines this
term of art as an “individual with a disability who, with
or without reasonable accommodation, can perform the
essential functions of the employment position.” 42 U.S.C.
§ 12111(8). As the text indicates, that an employee can
“perform the essential functions” of a teaching position
despite her disability and “without reasonable accom-
modation” does not exclude her from the definition of a
“qualified individual with a disability.” To put it another
way, an “unqualified individual with a disability” would
be someone with a disability who could not do the job
no matter what the employer did to reasonably accom-
modate. See Hammel v. Eau Galle Cheese Factory, 407 F.3d
852, 862 (7th Cir. 2005).
Instead, the question is whether her requested accom-
modation was reasonable, and we don’t think it was. The
ADA does not exhaustively define a “reasonable accom-
modation,” though the term “may include . . . making
existing facilities used by employees readily accessible to
and usable by individuals with disabilities.” 42 U.S.C.
§ 12111(9)(A). Because walking long distances from the
bus stop makes it difficult to access certain schools, Filar
argues that her request was for something akin to this
No. 07-1275 25
type of accommodation. In support of her claim, she cites
to this Court’s decision in EEOC v. Sears Roebuck & Co., 417
F.3d 789 (7th Cir. 2005). In Sears Roebuck, we held that an
employer had not done enough to make the disabled
employee’s work station accessible to her. Due to her
disability, the plaintiff had problems walking long dis-
tances. When one supervisor told her she could use a
shortcut through another department or eat in a stock-
room near her work station, a different supervisor
would either rescind the offer or discipline the plaintiff
for her actions. In addition, Sears gave the plaintiff a
parking spot reserved for disabled employees, but it did
nothing to shorten her walk to her work station. Something
more, we held, was necessary: “these were not reasonable
accommodations because they did not consistently or
effectively make the Sears facility accessible to” the plain-
tiff. Reasoning by analogy, Filar urges us to reach the
same conclusion here, saying that her workplace—any
one of the schools she would need to work in on any
given day—was similarly inaccessible unless near a bus
stop.
At the highest level of abstraction, Filar’s claim has
some surface appeal. In addition to the obligations dis-
cussed in Sears Roebuck, this Court has held that reassign-
ment to a vacant position can be part of the employer’s
obligation to reasonably accommodate. See DePaoli v. Abbott
Laboratories, 140 F.3d 668, 675 (7th Cir. 1998). Without
knowing the particulars of the Board’s cadre-assignment
policies, Filar might appear to be requesting just such
a “reassignment,” only to a specific subset of the schools
in the Chicago Public Schools that would be “accessible”
to public transportation.
But three aspects of the request convince us that it was
just not reasonable. First, based on the requirements of a
26 No. 07-1275
cadre substitute, Filar’s request would have amounted to
preferential treatment, which the ADA does not require.
Williams v. United Ins. Co. of America, 253 F.3d 280, 282 (7th
Cir. 2001). The collective bargaining agreement between
the Board and the Chicago Teachers Union requires
cadre teachers to be “continuously available to perform
substitute service” and to “accept all assignments in any
and every school” as they became available. Under the
ADA, an “employer is not required to give the disabled
employee preferential treatment, as by . . . waiving his
normal requirements for the job in question.” Williams, 253
F.3d at 282. Here, Filar was in essence requesting to opt out
of the cadre-assignment system; she only wanted “one
place to work” and not to be subjected to the far-reaching
assignment system applicable to cadre substitutes, which
may have made access to the schools difficult. Nor
would she be “available” as a substitute in the event that
she was assigned to a school that did not fit her request.
This falls well short of the cadre substitutes’ obligations
and is thus more than the ADA requires of the Board.
Second, the Board did not have the authority to assign
a cadre substitute to “one place to work.” Under the
collective bargaining agreement, the Board itself was not
responsible for slotting teachers at particular schools.
Instead, the cadre substitute would be “given the opportu-
nity to apply and be interviewed for vacant positions.”
And the principal could select a member of the cadre to be
a full-time substitute “at any time . . . to fill an existing
vacancy.” The principal’s personnel decisions, as dis-
cussed in the previous section, resulted largely from the
discretion he or she enjoyed. The Board could not re-
quire a principal to take a particular cadre substitute, as
Filar requested.
No. 07-1275 27
Finally, even assuming that something could be ar-
ranged with Filar under the collective bargaining agree-
ment, the administrative burden posed by Filar’s request
would have been prohibitively weighty. The plaintiff
must make a prima facie showing “that the accommoda-
tion is reasonable in the sense both of efficacious and of
proportional to costs.” Oconomowoc Residential Programs v.
City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). The
initial showing made by Filar in her request for an accom-
modation was simply too barebones to show that the
request was reasonable. There are at least 655 public
schools in the Chicago Public Schools system, including
116 high schools. See CPS At A Glance, http://
www.cps.k12.il.us/AtAGlance.html (last visited May 14,
2008). And the CTA has approximately 2000 buses that
operate over 154 routes with 12,000 bus stops. See
CTA O verview , http://w ww .transitchicago.com /
welcome/overview.html (last visited May 14, 2008). In
her request for accommodation and her appeal before
this Court, Filar has not given any indication of how
many of the 116 high schools would qualify besides the
four that she listed in her request for an accommoda-
tion. Thus, the Board had the option of either assigning
her to one of the four schools she requested—in violation
of the collective bargaining agreement—or researching
those schools in the City that satisfied her needs—a
costly task. Neither option is reasonable. For all these
reasons, the district court did not err in rejecting Filar’s
ADA claim.
III. Conclusion
For the foregoing reasons, we R EVERSE the district
court’s order of summary judgment as to Filar’s age
28 No. 07-1275
discrimination claim and A FFIRM the district court’s
order of summary judgment as to Filar’s disability claim.
USCA-02-C-0072—5-22-08