Rehling v. The City of Chicago

• Decision Date: 21 March 2000
• Docket Number: No. 99-1771,99-1771
• Citation: 207 F.3d 1009
• Parties: (7th Cir. 2000) Donald Rehling, Plaintiff-Appellant, v. The City of Chicago, a municipal corporation, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1009

207 F.3d 1009 (7th Cir. 2000)

Donald Rehling, Plaintiff-Appellant, v. The City of Chicago, a municipal corporation, Defendant-Appellee.

No. 99-1771

In the United States Court of Appeals For the Seventh Circuit

Argued January 10, 2000

Decided March 21, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 6467--Robert W. Gettleman, Judge. [Copyrighted Material Omitted]

Before Flaum, Manion, and Evans, Circuit Judges.

Flaum, Circuit Judge.

Donald Rehling appeals the district court's grant of partial summary judgment¹ to the City of Chicago (the "City"), alleging that the district court erred in determining that there was no genuine dispute as to whether the City offered Rehling a reasonable accommodation² under the Americans With Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq. Rehling also appeals the final judgment the district court entered against him following a jury verdict in favor of the City on his disparate treatment ADA claim,³ arguing that the district court made a series of erroneous evidentiary rulings. For the reasons stated herein, we affirm the decision of the district court.

I. Facts

Donald Rehling, the appellant, is a police officer with the Chicago Police Department (the "CPD"). He is currently on a leave of absence and receives a disability pension as the result of a December 5, 1994 accident in which he was struck by an automobile. As a consequence of the injuries sustained in that accident, Rehling had his left leg amputated just above the knee.

On December 1, 1995, following a long period of medical leave, Rehling submitted a request that he be returned to work on limited duty status. Rehling specifically requested to return to work in District 16, the police district to which he had been assigned prior to his accident. At this time the CPD's Medical Services Section contacted Thomas O'Connor, the District Secretary in District 16, who indicated that there was a position for Rehling in that district. Although Rehling was cleared to return to restricted duty by Jean Blake, the Medical Administrator of the Medical Services Section, both parties agree that Rehling was unable to function in his previous position as an officer in a patrol car.⁴

Rehling reported for duty at District 16 on December 7, 1995. Upon his return, Harry Tannehill, the Commander of the 16th Police District, assigned Rehling to assist with processing citations. Processing citations is a civilian position, and under the police department's collective bargaining agreement it may not be filled by a police officer. Furthermore, although Rehling was initially assigned to help in processing citations, there was no position in District 16 for an assistant to the citations clerk. The City asserts that there were no other desk jobs available in District 16 during December 1995.

On December 8, 1995, Rehling was informed that he could no longer work in District 16. Commander Tannehill testified that he had called Deputy Chief Frank Radke about finding an assignment for Rehling because there were no desk jobs available in District 16. Rehling disputes that it was Tannehill who made the decision to transfer him out of District 16. According to Rehling, that decision came from the General Counsel to the Superintendent of Police, Donald Zoufal, through Chief of Patrol John Cadogan. When Medical Administrator Blake called Zoufal about Rehling's change of assignment, Zoufal stated that he made the decision to transfer Rehling because an officer using a walker was not the image the police department wanted to convey to the public.

Rehling testified that he called Cadogan about his reassignment from District 16 and was informed that the decision had been made by Zoufal. Rehling then contacted Zoufal to discuss the matter and was allegedly told by Zoufal that he could not work in District 16 because of his disability and because his return to work would set a precedent for other disabled officers who desired to work in police districts. In addition, the head of the Fraternal Order of Police, William Nolan, stated that when he called Zoufal about Rehling's transfer, Zoufal responded that the CPD could not have a "cripple" in public view because of liability concerns.

Commander Tannehill informed Rehling of two possible reassignments, one working the midnight shift at O'Hare Airport and one in the Alternative Response Unit. During his deposition, Rehling stated that he did not want the O'Hare assignment because of concerns about the availability of parking and the hours. This assignment was later withdrawn as an option because it was determined that public transportation did not stop close enough to O'Hare to accommodate Rehling. At the time this offered position was withdrawn, Rehling alleges that he was "leaning toward" taking it.

Rehling admits that he could perform the duties of the Alternative Response Unit, whose members take incoming reports and determine whether it is necessary to dispatch a squad car to the scene. However, Rehling also testified that he did not know how he would get to work at that unit. Rehling stated that he did not feel comfortable accepting a ride from another officer that the department had arranged for him, that the Chicago Transit Authority's disability rider program was unreliable, and that he was not able to take public transportation.

Despite Rehling's concerns about transportation, Chief of Patrol Cadogan submitted a request to have Rehling detailed to the Alternative Response Unit. That request was granted, and Rehling was given until December 20, 1995 to report for duty. Instead of reporting, Rehling used his accumulated compensatory and furlough time and then applied for a disability pension.

On October 3, 1996, Rehling filed suit against the City under the ADA. In his complaint, Rehling alleged that the City had discriminated against him on the basis of his disability by not allowing him to work as a citation clerk in District 16. In addition, Rehling asserted that the City had failed to provide him a reasonable accommodation.

On December 3, 1997, the City filed a motion for summary judgment and a memorandum of law in support of that motion. The district court denied that motion, but held that Rehling had effectively abandoned his reasonable accommodation claim because he "d[id] not really dispute that either of the two positions [offered to him] would amount to a reasonable accommodation under the ADA." The district court further held that Rehling still had a disparate treatment claim based on his allegations that the City transferred him out of District 16 because of his disability, and the case proceeded to trial on that theory. The City filed a motion seeking to bar Rehling from relitigating his reasonable accommodation claim at trial, and that motion was granted.

Prior to trial, the City also filed a motion in limine to bar evidence of the substance of conversations between Zoufal, the CPD's General Counsel, and ranking members of the CPD, on the ground that the conversations were protected by the attorney-client privilege. The district court held an in camera hearing on the attorney-client privilege issue on August 26, 1998, and Zoufal was questioned about the conversations the City asserted were protected. The district court granted the City's motion to bar evidence of the substance of conversations between Zoufal and members of the CPD. However, the motion specifically permitted Rehling and Nolan to testify as to their conversations with Zoufal.

On March 2, 1999, trial began on Rehling's disparate treatment claim. On March 4, 1999, the jury returned a verdict for the City. Rehling now appeals the district court's grant of partial summary judgment as to the issue of reasonable accommodation, as well as the district court's entry of final judgment for the City following a jury verdict in favor of the City on Rehling's disparate treatment claim.

II. Analysis

A.

Rehling first challenges the district court's grant of partial summary judgment to the the City as to the reasonable accommodation issue. In ruling for the City on this point, the court found that Rehling had effectively abandoned his reasonable accommodation claim because he did not dispute that the alternative positions offered to him were reasonable accommodations. The district court accordingly limited the issues to be presented to the jury to those of disparate treatment. We review the district court's decision in this regard as a grant of partial summary judgment to the City and subject it to de novo review. See Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).

1. The Availability of a Position in District 16

Rehling first argues that the district court erred in granting the City partial summary judgment as to the reasonable accommodation issue because there was a genuine dispute about the availability of a position in District 16. According to Rehling, a jury should have been allowed to determine whether a position was in fact available in District 16, and whether a reasonable accommodation in an alternative position was necessary. In support of this argument, Rehling testified that Commander Donald Bergerin, his District Commander at the time of his injury, told him that there would be a place for him in District 16, and that District 16 Secretary O'Connor told the Medical Services Section that there was a position available for Rehling in District 16. In addition, Rehling notes that he was initially placed in District 16 and was permitted to do citation work by District Commander Tannehill. Rehling argues that this evidence was sufficient to overcome the City's motion for summary judgment.

Rehling concedes that he was not able to return to work in his previous capacity as an officer in a patrol car, but he correctly argues that "the ADA may require an employer to reassign a disabled employee...