Priscilla Conners v. Robert Wilkie ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2426
PRISCILLA L. CONNERS,
Plaintiff-Appellant,
v.
ROBERT WILKIE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-CV-5623 — John J. Tharp, Jr., Judge.
____________________
ARGUED FEBRUARY 14, 2020 — DECIDED JANUARY 14, 2021
____________________
Before SYKES, Chief Judge, and RIPPLE and SCUDDER, Circuit
Judges.
SYKES, Chief Judge. Priscilla Conners worked as a licensed
practical nurse (“LPN”) at a healthcare center operated by
the U.S. Department of Veterans Affairs, where her duties
included treating and observing patients, giving immuniza-
tions, managing the front desk, teaching classes, and filling
out paperwork. In October 2011 she was hit by a car and
suffered severe injuries that seriously impeded her ability to
2 No. 19-2426
perform most of her nursing duties. Her supervisor initially
permitted her to retain her LPN position but radically
reduced her responsibilities to only teaching and paperwork.
After more than two years in that status, the VA concluded
that Conners could not perform the essential duties of an
LPN even with reasonable accommodations and attempted
to work with her on an acceptable reassignment. Those
efforts failed. In January 2014 the VA terminated her em-
ployment.
Conners sued the Secretary of the VA alleging that the
agency violated her rights under the Rehabilitation Act by
failing to accommodate her disability, retaliating against her,
and subjecting her to a hostile work environment based on
her disability. On cross-motions for summary judgment, the
district court entered judgment for the Secretary on all
claims.
Only the accommodation claim is at issue on appeal. The
threshold element requires Conners to prove that she was a
“qualified individual with a disability” when she was
fired—that is, that she was capable of performing the essen-
tial functions of an LPN with or without a reasonable ac-
commodation. The evidence does not support a finding in
her favor on that element. We affirm the judgment.
I. Background
In 2006 Conners began work as an LPN at the Red Rover
Clinic at the Captain James A. Lovell Federal Health Care
Center, a VA-operated facility north of Chicago. In that
capacity she had the following general duties: treating and
observing patients, administering immunizations, supervis-
ing corpsmen who helped with immunizations, managing
No. 19-2426 3
the front desk, teaching classes, and filling out paperwork.
She also was expected to respond to medical emergencies.
The job description required her to “have the physical ability
to perform job-related duties which require lifting, standing,
bending, transferring, stooping, stretching, walking, push-
ing, or pulling without assistance from another patient care
provider.”
In October 2011 Conners was hit by a car as she was
crossing the street. She sustained severe injuries: fractures in
her skull, pelvis, and sacrum, as well as compound leg
fractures. Her injuries required surgery, and she was absent
from work for more than six months while she recuperated.
Conners returned to work on April 30, 2012, with many
physical limitations. She submitted a note from her doctor
describing her required restrictions:
Upon return, she is able to work 4 hours per
day for the first 6 weeks. Then she can increase
her hours to 6 hours per day for 6 weeks. Then
she can increase to full time. She is not able to
lift objects over 20 pounds. She is not able to
climb, run, bend, squat or jump. She cannot
perform prolonged sitting or walking. She
needs to have the ability to change position af-
ter about 15 minutes. She will need to be able
to elevate her leg as needed. She needs to avoid
loud noises. Lastly, she will require at least
four medical visits per month for the next few
months.
Conners’s return to work did not last long. On her second
day back, she went to the hospital emergency room because
4 No. 19-2426
of a broken screw in a rod in her left leg. This required a
second surgery that kept her off work until June 2012. When
she returned, she submitted another doctor’s note explaining
that her physical limitations had not changed but she could
now work full time.
When Conners returned to work in June, the impact of
her limitations became obvious. She could not treat and
observe patients, give immunizations, manage the front
desk, or respond to medical emergencies. Nurse Manager
Mary Bailey, her supervisor, relieved Conners of most of her
responsibilities and limited her duties to teaching and
completing paperwork.
The VA took no other action in response to Conners’s
disability until March 2013. In the meantime, Conners sent
Nurse Bailey numerous medical reports and recommenda-
tions from her doctor describing her continued physical
limitations. Bailey did not forward any of this information to
an accommodation coordinator—the officials at the VA who
are responsible for determining whether and how to ac-
commodate or reassign an employee with a disability.
By late March upper management at the healthcare cen-
ter learned the full impact of Conners’s disability on her job
performance and directed her to contact Eric Strong, an
accommodation coordinator, to fill out a formal accommoda-
tion request. Conners requested five specific accommoda-
tions: (1) a private office, which she said was necessary due
to her posttraumatic stress disorder and chronic pain; (2) the
option to elevate her leg for 15–20 minute intervals every
one to two hours; (3) a footstool; (4) no standing for more
than 10–15 minutes at one time; and (5) a walking limitation
of no more than 25 yards except when absolutely necessary.
No. 19-2426 5
The VA agreed to provide a footstool but could not grant
the other accommodations because a major part of an LPN’s
responsibilities involved seeing patients and administering
and supervising immunizations, which require extended
standing and walking. The VA noted that Nurse Bailey had
on her own initiative limited Conners’s duties to teaching
classes, but even those duties required her to walk more
than 25 yards at times. Conners responded by filing an
administrative complaint with the VA’s Office of Resolution
Management alleging that the VA had failed to accommo-
date her disability.
In June 2013 the VA concluded that Conners was unable
to perform the essential functions of an LPN and gave her
notice of that determination, though it left open the possibil-
ity of reassignment if a different position could be found that
fit her qualifications and physical limitations. The VA asked
her to fill out a form describing her limitations and the jobs
she was qualified to perform and would be willing to accept.
The form also asked if she was willing to relocate outside her
current facility or commuting area and, if so, to list particu-
lar locations (or say whether she was willing to be reas-
signed to any location). Conners responded, saying only that
90% of her current duties were clerical or supervisory and
listing Mesa, Arizona, as the lone possible transfer location.
A portion of the form’s certification section read: “I under-
stand that if [the] VA cannot find a suitable position, the
agency has no further obligation to accommodate me.”
Conners crossed out that sentence.
Strong, the accommodations coordinator, asked Conners
to resubmit the form because it was against VA policy to
permit an employee to customize the form by crossing out a
6 No. 19-2426
portion of the certification. Conners did not comply with this
request.
Months went by without further action by either Conners
or the VA. In October 2013 Conners submitted a second
reassignment form, this time listing Hot Springs, Arkansas,
as the only location outside her current commuting area to
which she was willing to relocate. The remainder of her
responses were identical to those on the form she submitted
in June, and she again crossed out the same portion of the
certification.
Despite the nonconforming certification, the VA contact-
ed healthcare administrators at VA facilities in both Hot
Springs and Phoenix to see if they had any vacant LPN
positions that could accommodate Conners’s requests. Both
responded that they had no open LPN positions that were
compatible with Conners’s requested accommodations.
In November the VA explained to Conners that no avail-
able LPN position could accommodate her limitations and
gave her three options: (1) reassignment to a different job—
i.e., not a nursing position—that was compatible with her
qualifications and limitations; (2) medical-disability retire-
ment; or (3) termination from her LPN position. Conners
responded: “I am going to continue my duties in my current
position with reasonable accommodations. I am gainfully
employed as a nurse with my reasonable accommodations.”
The VA informed Conners that retaining her current po-
sition as an LPN was not an option: “As an LPN in this work
center, there are professional and physical responsibilities
that are simply not being met.” The VA again explained the
three options available to her. She could seek reassignment
No. 19-2426 7
to a different position, which would require an up-to-date
résumé and a formal reevaluation of her qualifications.
Alternatively, she could seek medical-disability retirement.
Finally, if reassignment wasn’t viable and she declined
disability retirement, the VA would terminate her employ-
ment because she was unable to perform the essential duties
of an LPN even with reasonable accommodations.
Conners declined to pursue the first two options, so in
January 2014 the VA sent her a notice of proposed removal.
The notice explained that the VA was planning to terminate
her employment because she was unable to perform the
essential duties of her LPN position and to maintain a
regular work schedule. The VA informed Conners that
between December 1, 2011, and December 11, 2013, she had
missed the equivalent of 304 full workdays due to the pro-
longed leaves of absence compelled by her numerous sur-
geries. The VA gave her 14 days to contest the proposed
action; if she did not do so, her employment would be
terminated. Conners did not respond within the allotted
time, so the VA terminated her employment.
In April 2014 Conners filed a second administrative
complaint with the VA. This time she challenged the termi-
nation of her employment as both discriminatory and retali-
atory in violation of the Rehabilitation Act. She also alleged
that her subordinates and coworkers had harassed her,
creating a hostile work environment. In May 2015 the VA
dismissed both administrative complaints.
Conners then sued the VA Secretary in his official capaci-
ty alleging that the agency violated the Rehabilitation Act by
failing to reasonably accommodate her disability, retaliating
against her, and subjecting her to a hostile work environ-
8 No. 19-2426
ment. See 29 U.S.C. § 794. A suit against the Secretary in his
official capacity is a suit against the agency itself, so for
simplicity we refer to the VA as the defendant. Following
lengthy discovery, Conners sought summary judgment on
her claim for failure to accommodate, and the VA cross-
moved for summary judgment on all claims.
The judge ruled for the VA across the board. Regarding
the failure-to-accommodate claim, the judge explained that
Conners had not offered any evidence that she was a “quali-
fied individual with a disability,” which is an essential
element of the claim. Conners did not address the retaliation
and hostile-environment claims in her response to the VA’s
motion, so the judge deemed them abandoned. For com-
pleteness, however, the judge noted that the summary-
judgment record did not support a claim for retaliation or a
hostile work environment, so the VA was entitled to judg-
ment as a matter of law. The judge entered judgment for the
VA on all three claims, and Conners appealed.
II. Discussion
Conners does not challenge the judge’s conclusion that
she abandoned her retaliation and hostile-environment
claims, so we limit our review to her claim that the VA failed
to accommodate her disability. We give the factual record a
fresh look, construing the evidence and drawing all reasona-
ble inferences in her favor. Lavallee v. Med-1 Sols., LLC,
932 F.3d 1049, 1054 (7th Cir. 2019).
The Rehabilitation Act provides that “[n]o otherwise
qualified individual with a disability in the United States …
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
No. 19-2426 9
subjected to discrimination … under any program or activity
conducted by any Executive agency.” 29 U.S.C. § 794(a). The
Rehabilitation Act expressly incorporates the liability stand-
ards of the Americans with Disabilities Act of 1990 (“ADA”),
id. § 794(d), with one notable exception. The Rehabilitation
Act has a stricter causation requirement: the plaintiff’s
disability must be the sole reason for the alleged discrimina-
tory action; this contrasts with the ADA, which requires only
that the plaintiff’s disability be a reason for the challenged
action. Compare § 794(a) with 42 U.S.C. § 12132. See also
Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013).
As we shall see, however, causation is not at issue here. The
claim suffers from factual deficits earlier in the legal frame-
work.
An employer covered by the ADA or the Rehabilitation
Act may be liable for disability discrimination if it fails to
“mak[e] reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee,” unless
the employer can show that “the accommodation would
impose an undue hardship on the operation of the [employ-
er’s] business.” 42 U.S.C. § 12112(b)(5)(A). The duty to
reasonably accommodate a disabled employee may require a
reassignment to a vacant position. Id. § 12111(9)(B).
In line with the statutory language, the elements of a
claim for failure to accommodate an employee’s disability
are: (1) the employee was a qualified individual with a
disability; (2) the employer was aware of the disability; and
(3) the employer failed to reasonably accommodate the
disability. Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir.
2019). If the plaintiff establishes these elements of the prima
10 No. 19-2426
facie case, the burden shifts to the employer to prove that the
requested accommodation would impose an undue hard-
ship. Ford v. Marion Cnty. Sheriff’s Office, 942 F.3d 839, 850
(7th Cir. 2019).
Conners runs into evidentiary trouble on the first ele-
ment: whether she was a qualified individual with a disabil-
ity. The ADA defines a “qualified individual” as
an individual who, with or without reasonable
accommodation, can perform the essential
functions of the employment position that such
individual holds or desires. For the purposes of
this subchapter, consideration shall be given to
the employer’s judgment as to what functions
of a job are essential, and if an employer has
prepared a written description before advertis-
ing or interviewing applicants for the job, this
description shall be considered evidence of the
essential functions of the job.
42 U.S.C. § 12111(8).
Applying this definition typically entails a two-step in-
quiry. The first step asks whether the plaintiff has the basic
qualifications required for the position, such as educational
prerequisites, employment experience, skills, or licenses.
Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 241–42 (7th Cir.
2018). The second step asks whether the plaintiff can per-
form the essential functions of the job with or without
reasonable accommodations. Id. To determine whether a job
duty is an essential function of the position, “we consider the
employer’s judgment, the employee’s written job descrip-
tion, the amount of time the employee spends performing
No. 19-2426 11
that function, the consequences of not requiring the employ-
ee to perform the function, and the experiences of past and
current workers.” Id. at 242.
It’s undisputed that Conners satisfied the basic prerequi-
sites for the position—she was an LPN, after all, and had
performed the job satisfactorily for several years before her
disabling accident. The only question is whether she could
perform the essential functions of the LPN position with or
without accommodations when the VA made its decision to
let her go.
According to the job description, the VA requires its
LPNs to treat and observe patients, assist in medical emer-
gencies, and to “have the physical ability to perform job-
related duties which require lifting, standing, bending,
transferring, stooping, stretching, walking, pushing, or
pulling without assistance from another patient care provid-
er.” In addition, the undisputed evidence shows that prior to
her accident, Conners’s job duties also included administer-
ing immunizations, supervising corpsmen who helped with
immunizations, and managing the front desk.
Conners’s physical limitations stemming from her 2011
accident prevented her from performing most of these
responsibilities. The restrictions on her ability to endure
sustained periods of standing or to walk more than 25 yards
at a time made it impossible for her to treat and observe
patients, respond to medical emergencies, give immuniza-
tions, or manage the front desk. More generally, her limita-
tions were incompatible with the physical requirements
outlined in her job description. The VA considered these
functions and responsibilities essential, and “[w]e presume
that an employer’s understanding of the essential functions
12 No. 19-2426
of the job is correct, unless the plaintiff offers sufficient
evidence to the contrary.” Gratzl v. Office of Chief Judges of
12th, 18th, 19th & 22nd Judicial Circuits, 601 F.3d 674, 679 (7th
Cir. 2010). Conners offered no evidence to rebut this pre-
sumption.
Conners emphasizes that she was able to perform a re-
duced set of duties after the accident—namely, teaching and
paperwork. This evidence, she says, demonstrates that she
was capable of performing the essential functions of an LPN
despite her physical limitations. This argument fails for two
reasons. First, the fact that Nurse Bailey permitted many of
Conners’s job duties to go unperformed does not mean those
duties were not essential functions of an LPN. “An employer
need not create a new job or strip a current job of its princi-
pal duties to accommodate a disabled employee.” Id. at 680.
Second, the argument seems to rest on the premise that
Nurse Bailey’s decision to reduce Conners’s responsibilities
means that altering the normal requirements of an LPN was
not an undue hardship on the VA. But the undue-hardship
inquiry has no role to play in the threshold analysis of
whether Conners was qualified to perform the essential
functions of her job as an LPN. Undue hardship is a defense
and does not come into play until Conners establishes her
prima facie case. If she had produced evidence showing that
she was capable of performing the essential functions of an
LPN with some particular accommodation, then the VA
would have an opportunity to demonstrate that the request-
ed accommodation would create an undue hardship on its
operations. But Conners offered no such evidence. To the
contrary, the undisputed evidence shows that it was impos-
sible for her to perform the essential duties of an LPN even
No. 19-2426 13
with accommodations. There is no need to address the
question of undue hardship.
Though she was not qualified to perform her job as an
LPN, Conners had the option to show that she was qualified
to perform the essential functions of another vacant position
at the VA. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476,
482 (7th Cir. 2017). This too is part of a plaintiff’s prima facie
case, so it was her burden to prove that there was a vacant
position for which she was qualified. Id.; McCreary v. Libbey-
Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997). She
hasn’t carried this burden. She offered no evidence that she
could perform the essential functions of any vacant position
at the VA, so a reasonable jury could not conclude that the
VA discriminated against her by failing to reassign her.
Finally, Conners argues that the VA failed to engage in
the interactive process to identify reasonable accommoda-
tions for her disability. Sansone v. Brennan, 917 F.3d 975, 979–
80 (7th Cir. 2019). Setting aside the dearth of evidence for
this contention, Conners cannot show that she was qualified
to perform her LPN job with accommodations, so any failure
to engage in the interactive process is irrelevant. See Stern v.
St. Anthony’s Health Ctr., 788 F.3d 276, 293 (7th Cir. 2015).
And because the interactive process is not an end in itself,
we have repeatedly held that the mere failure to engage in
the process cannot give rise to a claim for relief. Sansone,
917 F.3d at 980; Stern, 788 F.3d at 292; Ozlowski v. Henderson,
237 F.3d 837, 840 (7th Cir. 2001).
AFFIRMED