Brown v. Milwaukee Bd. of Sch. Dirs.

• Decision Date: 04 May 2017
• Docket Number: No. 16-1971,16-1971
• Citation: 855 F.3d 818
• Parties: Sherlyn BROWN, Plaintiff–Appellant, v. MILWAUKEE BOARD OF SCHOOL DIRECTORS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

855 F.3d 818

Sherlyn BROWN, Plaintiff–Appellant,

v.MILWAUKEE BOARD OF SCHOOL DIRECTORS, Defendant–Appellee.

No. 16-1971

United States Court of Appeals, Seventh Circuit.

Argued November 3, 2016

Decided May 4, 2017

James A. Walcheske, Attorney, Walcheske & Luzi, LLC, Brookfield, WI, for Plaintiff–Appellant.

Jenny Yuan, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendant–Appellee.

Before Bauer, Manion, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

This appeal under the Americans with Disabilities Act addresses a disabled employee's obligation to participate in identifying reasonable accommodations for her condition.

Plaintiff Sherlyn Brown was an assistant principal for defendant Milwaukee Public Schools until she badly injured her knee while restraining a student. When she returned to work following surgery, she and her doctor told Milwaukee Schools that she could not be "in the vicinity of potentially unruly students." Since virtually all students are "potentially" unruly, Milwaukee Schools understood that limit to bar virtually all contact with students. It repeatedly communicated that understanding to Brown as it tried to accommodate her disability by finding her a new position. When Brown's three-year leave of absence expired before a suitable position was found, Milwaukee Schools fired her. Brown sued under the Americans with Disabilities Act, claiming that her disability had never prevented interaction with students and that Milwaukee Schools failed to accommodate her disability. The district court granted summary judgment for Milwaukee Schools, and Brown has appealed.

We affirm. Because Brown and her doctors repeatedly told Milwaukee Schools that she could not be "in the vicinity of potentially unruly students," Milwaukee Schools is not liable for failing to move her to a position requiring such proximity. All but one of the other jobs Brown identifies as reasonable accommodations would have required such proximity. The lone exception would have been a promotion for which Brown was not the most qualified candidate. The Act did not require Milwaukee Schools to promote her as an accommodation.

I. Legal Framework

We review de novo a district court's grant of summary judgment. Our account of the facts views the evidence in the light most favorable to the non-moving party, but we must affirm if no reasonable trier of fact could find in favor of the non-moving party. White v. City of Chicago , 829 F.3d 837, 841 (7th Cir. 2016).

Our account of the facts will be easier to follow with a brief outline of the reasonable accommodation duty under the Americans with Disabilities Act. The Act requires employers to make "reasonable accommodations that will allow a ‘qualified individual with a disability’ to perform the essential functions of his or her job." Miller v. Illinois Dep't of Transportation , 643 F.3d 190, 197 (7th Cir. 2011), quoting 42 U.S.C. § 12112(b)(5)(A). "Reassigning disabled employees to vacant positions that they can perform is a reasonable accommodation." Emerson v. Northern States Power Co. , 256 F.3d 506, 515 (7th Cir. 2001), citing Hendricks-Robinson v. Excel Corp. , 154 F.3d 685, 693 (7th Cir. 1998) ; 42 U.S.C. § 12111(9) (reasonable accommodation "may include ... reassignment to a vacant position").

A disabled employee need not be the most qualified applicant for a vacant position, but she must be qualified for it. EEOC v. United Airlines, Inc. , 693 F.3d 760, 764 (7th Cir. 2012) (holding that deviation from a best-qualified selection policy does not always represent an undue hardship for the employer); Jackson v. City of Chicago , 414 F.3d 806, 813 (7th Cir. 2005) ("The employer need only transfer the employee to a position for which the employee is otherwise qualified."), quoting Rehling v. City of Chicago , 207 F.3d 1009, 1014 (7th Cir. 2000). The Act does not, however, require employers to promote employees to accommodate them. Malabarba v. Chicago Tribune Co. , 149 F.3d 690, 699 (7th Cir. 1998), citing Shiring v. Runyon , 90 F.3d 827, 832 (3d Cir. 1996).

Identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process. See Stern v. St. Anthony's Health Center , 788 F.3d 276, 292 (7th Cir. 2015), citing Kauffman v. Petersen Health Care VII, LLC , 769 F.3d 958, 963 (7th Cir. 2014). Both parties are responsible for that process. If a reasonable accommodation was available but the employer prevented its identification by failing to engage in the interactive process, that failure is actionable. Id . On the other hand, if the employee "does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee." Reeves ex rel. Reeves v. Jewel Food Stores, Inc. , 759 F.3d 698, 702 (7th Cir. 2014), citing Beck v. University of Wisconsin Board of Regents , 75 F.3d 1130, 1135 (7th Cir. 1996).

II. Factual and Procedural Background

In light of these principles, the critical facts here concern (1) the communications between Brown and Milwaukee Schools about the extent of her restrictions, especially her ability to be in the vicinity of potentially unruly students; and (2) the potential reassignments she discussed with Milwaukee Schools as accommodations for her disability.

A. Brown's Injuries

In 2006, Brown was an assistant principal for Milwaukee Schools. She began to experience severe knee pain while performing the duties of that position. Her doctor diagnosed her with severe arthritis and recommended that she be moved to a job with limited mobility requirements. For the next few years, Milwaukee Schools accommodated her by changing the location of her work and modifying her job duties. It excused her from breaking up fights and physically intervening with students, which would normally be an assistant principal's responsibility. She arranged those accommodations with James Gorton, Milwaukee School's employment specialist who continued to work on her case for the remainder of her employment. During that time, Brown underwent knee replacement surgery.

Despite these precautions, Brown injured her knee again in 2009, not long after her surgery, while restraining an unruly student. She had another surgery. Her doctor then restricted her to sedentary work with no student interaction until further notice. A few months after her return to work, in May 2010, her doctor clarified that incidental or one-on-one contact with students "should not be a problem," but that contact with out-of-control children or potentially combative students should be avoided.

B. Brown's Leave of Absence

In late July 2010, Brown clarified her medical restriction again. She had been assigned to a new school building as an assistant principal. She found that she was expected to "patrol the halls, [and] be involved in student contact." She called Gorton and told him that she still needed to "avoid interaction with volatile students." Gorton said he thought her doctor had changed that limit, and he asked her to have her doctor confirm that she had that restriction. Two days later, her doctor told Gorton that Brown "should not be in the vicinity of potentially unruly students." That restriction, he said, was "permanent"—it would not be removed for at least three to four years, if ever. Gorton immediately told Brown that she could not continue working as an assistant principal and that she would be on sick pay while he worked with her to find a new position. He discussed the scope of the search for a replacement position with her. She said she was interested in positions at or above her pay grade, salary, and number of working days, and would prefer to remain in her union.

A week later, Gorton sent Brown a list of eight vacant positions he had considered, including a Student Achievement Supervisor position, but he explained that he did not believe any was suitable. For six of the positions, he listed "the job duties require being in the vicinity of potentially unruly students" among the reasons they were unsuitable. For four of the positions, that was the only listed reason. The Student Achievement Supervisor position was unsuitable solely because it required being in the vicinity of potentially unruly students. Brown did not dispute Gorton's characterization of her restriction.

Later that week, Brown expressed interest in two other positions, including a Charter School Program Officer position. Gorton told her she was not physically qualified for those positions because she would "need to be in the schools to interact with students and staff." Again, Brown did not dispute his characterization of her restriction.

The next month, Gorton received a letter from an attorney for Brown's union. That letter did dispute his understanding of her restrictions, saying that she was able to "interact[ ] with students and staff" but not able to "serve in a position of authority ... over potentially unruly students." Gorton wrote back disagreeing with the attorney's characterization and offering to show the attorney the doctor's specific restrictions. No one followed up with him, and the conversation ended there.

Brown had another surgery in late 2010 and was cleared to return to work in early 2011 with restrictions, including a doctor's instruction to "avoid/no student discipline situations." Gorton asked again for clarification and emailed Brown a questionnaire for her doctor to complete. He also asked her to review the factual background provided in the questionnaire, and to let him know if she saw inaccuracies. That background section quoted the doctor's earlier statement that "Ms. Brown should not be in the vicinity of potentially unruly students ." (Emphasis in original.) It asked the doctor if he was lifting that restriction and what he meant by "avoid student discipline situations." It added parenthetically that "Ms. Brown does not believe that she...