Ozlowski v. Henderson

• Decision Date: 17 January 2001
• Docket Number: No. 00-1079,00-1079
• Citation: 237 F.3d 837
• Parties: (7th Cir. 2001) Arthur Ozlowski, Plaintiff-Appellant, v. William J. Henderson, Postmaster General, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 837

237 F.3d 837 (7th Cir. 2001)

Arthur Ozlowski, Plaintiff-Appellant, v. William J. Henderson, Postmaster General, Defendant-Appellee.

No. 00-1079

In the United States Court of Appeals For the Seventh Circuit

Argued September 19, 2000

Decided January 17, 2001

Appeal from the United States District Court for the Northern District of Illinois. No. 99 C 756--Charles P. Kocoras, Judge.

Before Bauer, Manion, and Kanne, Circuit Judges.

Manion, Circuit Judge.

Arthur Ozlowski sued his former employer, William Henderson, the Postmaster General of the United States, alleging that the United States Postal Service had failed to accommodate his disabilities in violation of the Rehabilitation Act of 1973, 29 U.S.C. sec. 791, et seq. The Postal Service filed a motion for summary judgment and Ozlowski filed a cross- motion for partial summary judgment. The district court granted the Postal Service's motion and denied Ozlowski's cross-motion. Ozlowski appealed to this court, and we affirm.

I. Facts

Since 1969, Ozlowski has been afflicted with arachnoiditis, a degenerative spinal disease. As a result of this disease, over the years Ozlowski has had several knee surgeries, including two knee replacements. The disease is progressive and over time caused increasing difficulties to Ozlowski, finally culminating in the events giving rise to this lawsuit.

Ozlowski began working with the Postal Service in 1975 as a senior computer operator at the Chicago Bulk Mail Center ("BMC"). In 1986, he became supervisor of process control systems. He continued working in a variety of computer- related positions until late 1992 or early 1993 when the Postal Service reorganized as part of a national plan and eliminated his supervisory position. After the reorganization, in October, 1993, Ozlowski was offered his former job as senior computer operator but at the same pay he was currently receiving. He claims that he refused that offer because he wanted a position more commensurate with his experience. Ozlowski was eventually assigned to be supervisor of distribution operations at the Fox Valley facility in Aurora, Illinois. However, Ozlowski did not report to work at Fox Valley, but instead asked to be temporarily assigned elsewhere while he awaited knee surgery. His request was granted and he was assigned to work at the Irving Park facility. In November, 1993, Ozlowski underwent surgery on his right knee. After his recovery, Ozlowski asked to be detailed to the BMC. Again, Ozlowski's request was granted and he was detailed to the BMC's in-plant support group, where he performed various computer-related duties. During this time, Ozlowski was taking a number of medications which caused him to occasionally fall asleep at work. Although he never requested any particular accommodations while he worked at the BMC, postal officials were aware that Ozlowski had orthopedic problems and other ailments.

In early 1996, the Postal Service informed Ozlowski that his temporary detail at the BMC would be terminated and told him to report to his permanently assigned position at Fox Valley. It was at this time that Ozlowski informed the Postal Service of his limitations due to his worsened medical condition and specifically asked for a reasonable accommodation. According to one of Ozlowski's treating physicians, Ozlowski could only work in sedentary occupations, could not stand, walk, squat, stoop or kneel for prolonged periods of time and could not drive for more than 20 or 30 minutes at a stretch.

On January 18, 1996, he wrote a letter to John Wawrzyniec, a plant manager at the BMC, Ann O'Banner, a plant manager at Fox Valley, and Cynthia Kellogg, a human resources manager, requesting that his temporary detail at the BMC be continued indefinitely because of his medical condition. On February 7, 1996, he wrote to Wally Zobel, a manager at the BMC, requesting a transfer to that facility. He also wrote additional letters to Ann O'Banner, first notifying her that he would not be able to report to work there and next requesting paid medical leave based on his physical limitations.

During this time, Ozlowski underwent two knee replacement surgeries, the left knee in March, 1996 and the right knee in May, 1996. Although his doctors said he could return to work with limitations, Ozlowski never returned to work with the Postal Service after these surgeries.

On July 19, 1996, O'Banner wrote to Ozlowski presenting him with four options: (1) disability retirement, (2) regular retirement, (3) reassignment to another position, and (4) voluntary termination. In response, Ozlowski wrote to O'Banner on July 25, 1996 inquiring about the status of his request for reasonable accommodation, stating that "[a]s you are aware, I requested reassignment to the Bulk Mail Center. My request has been ignored." For her part, O'Banner contacted Wawrzyniec and inquired about the status of Ozlowski's request. O'Banner testified that she did not attempt to place Ozlowski herself because he had informed her that, based on his medical restrictions, he could not travel the distance to Fox Valley. After speaking with Ozlowski and receiving a note from Wawrzyniec, she believed Ozlowski was going to pursue disability retirement. Shortly thereafter, in August 1996, Ozlowski did choose the first option O'Banner had presented and applied for disability retirement, which the Postal Service granted effective October, 1996. On September 25, 1996, Ozlowski filed a formal complaint with the Equal Employment Opportunity Commission and on January 11, 1999, the EEOC issued its final decision. Ozlowski then filed a complaint in district court, which is the basis for the present appeal.

II. Discussion

"We conduct de novo review of a district court's decision involving cross-motions for summary judgment," Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998), viewing all of the facts, and drawing all reasonable inferences from those facts, in favor of the nonmoving party. Id. Summary judgment is proper if the record shows that "there is no genuine issue as to any material fact and that [a] moving party is entitled to judgment as a matter of law." Id. (quoting Fed.R.Civ.P. 56(c)). See also Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986).

Ozlowski filed suit under the Rehabilitation Act of 1973 claiming that the Postal Service had failed to reasonably accommodate his physical limitations. The Rehabilitation Act provides that no "qualified individual with a disability . . . shall, solely by reason of her or his disability, be . . . subjected to discrimination . . . by the United States Postal Service." 29 U.S.C. sec. 794(a). The standards used to determine whether a violation of this section has occurred are those used to interpret the Americans with Disabilities Act ("ADA"). 29 U.S.C. sec. 794(d); Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996). The ADA defines "discrimination," in part, as "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of business." 42 U.S.C. sec. 12112(b)(5)(A). Reassignment to a vacant position is a form of reasonable accommodation. 42 U.S.C. sec. 12111(9)(B). Federal regulations promulgated under the ADA make clear, however, that an applicant for a vacant position "must be qualified for, and be able to perform the essential functions of, the position sought with or without reasonable accommodation." 29 C.F.R. pt. 1630. app.

The ADA regulations also state that, to determine the appropriate reasonable accommodation, the employer may need to "initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation." 29 C.F.R. sec. 1630.2(o)(3); Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000) (employer has the burden of exploring with the worker the possibility of a reasonable accommodation). However, the failure to engage in the interactive process by itself does not give rise to relief. Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000). Instead, we must first look at whether there is a genuine issue of material fact regarding the availability of a vacant position to accommodate Ozlowski. If there were such a position, only then do we consider whether the failure to provide that accommodation was due to a breakdown in the interactive process. See Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 632 (7th Cir. 1998). It is the plaintiff's burden to show that a vacant position exists for which he was qualified. Rehling, 207 F.3d at 1015; McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997). The district court found that the Postal Service was not liable for failure to accommodate by reassignment because Ozlowski had failed to submit evidence demonstrating that a vacant position existed for which he was qualified.

On appeal, Ozlowski argues that he identified several open positions for which he was qualified and that he could have performed regardless of his limitations. In order to be "qualified," the employee must "(1) satisfy the legitimate prerequisites for that alternative position, and (2)...